Once things get going, it’s not Roberts but Justice Anthony Kennedy who may get a lot of the attention. Since Justice Sandra Day O’Connor’s departure, Kennedy has emerged as the new swing voter. That could put him in a bind in the abortion cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, set to be argued next month. At issue: whether Congress has the authority to ban the procedure often called “partial-birth abortion.” If the rest of the justices stay true to form, Kennedy could find himself in the old O’Connor role of casting the tie-breaking vote. He’s gone both ways on abortion in the past. In the 1992 landmark case Casey v. Planned Parenthood, Kennedy sided with O’Connor when the court upheld a woman’s basic right to an abortion by a vote of 6-3. But he later took the opposite tack in a 2000 “partial-birth” case. O’Connor argued that that a ban on the procedure must allow an exception for the health of the mother. Kennedy disagreed a health exception was needed, but O’Connor prevailed in a 5-4 split.
Now Congress is trying to up-end that 2000 ruling with a federal law that declares the “partial-birth” procedure is never necessary to preserve the health of the mother. Will Kennedy give the right the vote it needs to impose the biggest restriction on abortion since Roe? He could theoretically reverse his own stance by citing the judicial principle of stare decisis, which gives extra weight to preserving the status quo set forth in earlier cases–like O’Connor’s 2000 ruling. But if Kennedy doesn’t change course, he’d likely provide the crucial fifth vote to uphold the federal law and give anti-abortion groups a win. In past terms, conservatives have been outraged by what they see as Kennedy’s “judicial activism” in siding with the court’s liberal bloc. “Justice Kennedy has consistently been a swing voter and there’s no indication he will be any different this term,” says Leonard Leo, executive vice president of the conservative Federalist Society. Of course, if Kennedy “swings” his way this time around, you won’t find Leo rushing to the cameras to complain.
